Lt. Dan Choi, who became the poster boy for DADT, the unconstitutional law known as “Don’t Ask, Don’t Tell,” is on trial this week for chaining himself to the White House fence. Today, the third day of Choi’s trial, U.S. Magistrate Judge John Facciola halted the proceedings, and allowed Choi’s defense team to pursue a “vindictive prosecution” defense. The judge noted that Choi had been engaged in the same behavior and activities as his twelve compatriots, the group known as the “White House 13.” Twelve of the thirteen had made an agreement that gave them a “a clean record,” while Choi had decided against being part of that agreement.

Facciola said this morning that he had found there was prima facie evidence for “vindictive prosecution,” meaning enough evidence was presented to allow Choi’s lawyers to pursue such a claim. As a result, Choi’s lawyers would be able to ask for more documents and evidence from the government in order to investigate if higher-level officials advised their subordinates to try Choi in federal court rather than district court.

The government, represented in court by Assistant U.S. Attorney Angela George, told the court that it would be going to the U.S. Court of Appeals for the D.C. Circuit, filing a writ of mandamus (or a writ of prohibition) against the judge — seeking to stop the pursuit of the “vindictive prosecution” defense.

George said that if such a defense was going to go forward it should have been raised pre-trial and asked for the judge’s intentions.

Facciola responded bluntly, “I have made every effort to be as clear as humanly possible,” noting that Choi engaged in similar behavior — protesting with others against “Don’t Ask, Don’t Tell” by handcuffing himself to the White House fence — in March, April and November. In March and April, the judge said, he was treated in a similar way — but in November he was treated in an entirely different way.

The judge went on to say that he believed the prosecution was not selective in the tradition sense but rather was more subtle.

“It is impermissible,” he told the courtroom, “for the U.S. Government to prosecute differently on the basis of the content of First Amendment speech.”

By the way, now is a good time to think of all the people who put their lives and reputations on the line to get DADT repealed. Three more weeks until the official day. We owe all these good people more than we can imagine.